Southern District of Georgia grants Novartis summary judgment in federal Zometa® case.

05/15/13

GA

S.D. Ga. -- United States District Court for the Southern District of Georgia

Complex Litigation

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On May 15, 2013, the United States District Court for the Southern District of Georgia granted Novartis Pharmaceuticals Corporation’s motion for summary judgment in Wheeler v. Novartis Pharm. Corp., Case No. 1:11-cv-00211 (S.D. Ga. May 15, 2013). 

The plaintiff claimed that his wife developed osteonecrosis of the jaw (“ONJ”) as a result of her use of bisphosphonate medication Zometa®, which her oncologist had prescribed to prevent cancer-related bone destruction.  The court held that plaintiff’s claims based upon Mrs. Wheeler’s injury were barred by Georgia’s statute of limitations.  Slip Op. at 12.  Based upon the deposition testimony of her treating physicians, it was clear that “Mrs. Wheeler knew or should have known the cause of her ONJ on or before October 8, 2009 at the latest,” but plaintiff failed to file suit until December 28, 2011, which was over two years later.  Id

Mr. Wheeler’s loss of consortium claim had a longer limitations period and was not time-barred.  Slip Op. at 13.  However, the court granted summary judgment on this claim as well, because all of plaintiff’s underlying claims failed on the merits. There was “no probative evidence” to establish causation, slip Op. at 14-15, and the learned intermediary doctrine barred the failure-to-warn claim because Mrs. Wheeler’s prescribing oncologist “testified that he was aware of the risks associated with Zometa at the time he prescribed it to Mrs. Wheeler, that such risks were well known in the medical community, and, most significantly, that he continues to prescribe Zometa in the same manner today as he did for Mrs. Wheeler,” slip Op. at 16-18.  The court also dismissed warranty and negligent manufacture claims.

Wheeler is the latest in a long string of summary judgment victories for Novartis in the Aredia®/Zometa® litigation, including Messick v. Novartis Pharm. Corp., Case No. 4:12-cv-00693-SI (N.D. Cal. Feb. 15, 2013 ); Patterson v. Novartis Pharm. Corp., No. 1:11-CV-402-ML-LDA, ECF No. 70 (D.R.I. Dec. 19. 2012);Zimmerman v. Novartis Pharm. Corp., No. 08-cv-2089, 2012 WL 5816873 (D. Md. Nov. 16, 2012); Harvey v. Novartis Pharm. Corp., No. 2:06-cv-1140-VEH (N.D. Ala. Oct. 4, 2012); Luttrell v. Novartis Pharm. Corp., No. 2:07-cv-03015-TOR (E.D. Wash. Oct. 2, 2012); Conklin v. Novartis Pharm. Corp., No. 9:11-cv-00178-RC (E.D. Tex. Sept. 19, 2012); Ingram v. Novartis Pharm. Corp., __ F. Supp. 2d __, 2012 WL 2922716 (W.D. Okla. July 18, 2012); Parmentier v. Novartis Pharm. Corp., No. 1:12-CV-00045 SNLJ, 2012 WL 2324502 (E.D. Mo. June 19, 2012); Simard v. Novartis Pharm. Corp., 3:06-MD-01760 (M.D. Tenn. June 5, 2012); Irby v. Novartis Pharm. Corp., No. MID-L-1815-08 (N.J. Super. Ct. Mar. 16, 2012); McDaniel v. Novartis Pharm. Corp., No. 2:08-cv-02088, 2012 WL 32608 (W.D. Ark. Jan. 6, 2012); and Eberhart  v. Novartis Pharm. Corp., No. 1:08-cv-2542-WSD, 2011 WL 5289372 (N.D. Ga. Oct. 31, 2011). 

The Sixth Circuit has upheld summary judgment dismissals in several cases, including Simmons v. Novartis Pharm. Corp., No. 11-5053, 2012 WL 2016249 (6th Cir. June 5, 2012); Thomas v. Novartis Pharm. Corp., 443 F. App’x 58 (6th Cir. 2011) (affirming dismissal of Thomas, Anderson and Melau cases);Patterson v. Novartis Pharm. Corp., 451 F. App’x 495 (6th Cir. 2011); and Emerson v. Novartis Pharm. Corp., 446 F. App’x 733 (6th Cir. 2011). 

More than 100 Aredia® and/or Zometa® cases have been dismissed pre-trial during motions practice or in discovery. 

Novartis won the first of the two cases tried to date in the New Jersey consolidated litigation, Bessemer v. Novartis Pharm. Corp., No. MID-L-1835-08-MT (N.J. Super. Ct. Law Div. Oct. 22, 2010), aff’d, No. A-2069-10T1, 2012 WL 2120777 (N.J. Super. Ct. App. Div. June 13, 2012) (cert. denied).  And on May 15, 2013, Novartis won the second of those two trials in the New Jersey consolidated litigation, Meng v. Novartis Pharm. Corp., No. MID-L-7670-07-MT (N.J. Super. Ct. Law Div. May 15, 2013),

Novartis has also won three cases arising out of the federal MDL:  Hogan v Novartis Pharm. Corp.(E.D.N.Y.); Brodie v. Novartis Pharm. Corp. (E.D. Mo.); and Kyle v. Novartis Pharm. Corp. (W.D. Ky).  InBaldwin  v. Novartis Pharm. Corp., No. 2:06-cv-4049-MJW (W.D. Mo. Apr. 9, 2012), the jury returned only $225,000.00 in compensatory damages while rejecting entirely plaintiff’s claim for punitive damages.  InBrown v. Novartis Pharm. Corp., No. 7:08-CV-00130-FL (E.D.N.C.), plaintiff abandoned the lawsuit just two-and-a-half days into trial, voluntarily dismissing all claims against Novartis. 

Novartis is represented in this matter by Firm partner Kirby T. Griffis.

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